It sounds boring. Actually, it would have fundamentally changed, in the best possible way, the entire functioning of the administrative bureaucracy that rules this country in a way that bypasses both the legislative and judicial process and has ruined the checks and balances inherent in the U.S. Constitution.
The administrative state, for the better part of a century—and really dating back to the Pendleton Act of 1883—has designed policy, made policy, structured policy, implemented policy, and interpreted policy while operating outside the control of Congress, the president, and the judiciary.
The gradual rise of this fourth branch of government—which is very much the most powerful branch—has reduced the American political process to mere theater as compared with the real activity of government, which rests with the permanent bureaucracy.
Any new president can hire the heads of agencies, and they can hire staff, which are known as political appointees. These 4,000 political appointees ostensibly rule 432 agencies (as listed by the Federal Register) as well as some 2.9 million employees (aside from the military and postal service) that effectively inhabit permanent jobs. This permanent state—sometimes called the deep state—knows the ropes and the processes of government far better than any temporary political appointee, thus reducing the appointed jobs to cosmetic positions for the press to hound while the real actions of government take place behind the scenes.
From 2020 onward, the American people got to know this administrative state well. They ordered us to wear masks. They deployed their influence to close small businesses and churches. They limited how many people we could have in our homes. They festooned our businesses with plexiglass and told everyone to stay six feet apart. They demanded two weeks of quarantine when crossing state borders. They decided which medical procedures were elective and non-elective. And they finally demanded compliance with vaccine mandates at the penalty of job loss.
None of this was ordered by legislation. It was all invented on the spot by the permanent staff of the Centers for Disease Control and Prevention (CDC). We had no idea they had such power. But they do. And that same power that allowed those egregious attacks on rights and liberties also belongs to the Food and Drug Administration, the Department of Labor, the Environmental Protection Agency, the Department of Agriculture, the Department of Homeland Security, and all the rest.
Trump came into office with the promise of draining the swamp without understanding entirely what that meant. He gradually came to realize that he had no control over most of the affairs of government, not because he had no patience for the legislative process, but because he had no ability to terminate the employment of most of the civilian bureaucracy. Nor could his political appointees control it. The media, he gradually came to realize, echoed the priorities and concerns of this administrative state because of long-established relationships that led to nonstop leaks that spread false information.
In May 2018, he took his first steps to gain some modicum of control over this deep state. He issued three executive orders (E.O. 13837, E.O. 13836, and E.O.13839) that would have diminished their access to labor union protection when being pressed on the terms of their employment. Those three orders were litigation by the American Federation of Government Employees and 16 other federal labor unions.
Following the lockdowns of mid-March 2020, Trump became increasingly frustrated with the CDC and Anthony Fauci in particular. Trump was profoundly aware that he had no power to fire the man, despite his epically terrible role in prolonging COVID lockdowns long after Trump wanted to open up to save the U.S. economy and society.
Trump’s next step was radical and brilliant: the creation of a new category of federal employment. It was called Schedule F.
Employees of the federal government classified as Schedule F would have been subject to control by the elected president and other representatives. Who are they? They are those who met the following criteria, according to Trump’s executive order:
“Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition shall be listed in Schedule F. In appointing an individual to a position in Schedule F, each agency shall follow the principle of veteran preference as far as administratively feasible.”
Schedule F employees would be fired. “You’re fired” was the slogan that made Trump TV famous. With this order, he would be in a position to do the same to the federal bureaucracy. The order further demanded a thorough review throughout the government:
“Each head of an executive agency (as defined in section 105 of title 5, United States Code, but excluding the Government Accountability Office) shall conduct, within 90 days of the date of this order, a preliminary review of agency positions covered by subchapter II of chapter 75 of title 5, United States Code, and shall conduct a complete review of such positions within 210 days of the date of this order.”
“The directive from the White House, issued late Wednesday, sounds technical: creating a new ‘Schedule F’ within the ‘excepted service’ of the federal government for employees in policymaking roles, and directing agencies to determine who qualifies. Its implications, however, are profound and alarming. It gives those in power the authority to fire more or less at will as many as tens of thousands of workers currently in the competitive civil service, from managers to lawyers to economists to, yes, scientists. This week’s order is a major salvo in the president’s onslaught against the cadre of dedicated civil servants whom he calls the ‘deep state’ — and who are really the greatest strength of the U.S. government.”
Ninety days after Oct. 21, 2020, would have been Jan. 19, 2021, the day before the new president was to be inaugurated. The Washington Post commented ominously: “Mr. Trump will try to realize his sad vision in his second term, unless voters are wise enough to stop him.”
Biden was declared the winner due mostly to mail-in ballots.
How many federal workers in agencies would have been newly classified at Schedule F? We don’t know because only one completed the review before their jobs were saved by the election result. The one that did was the Congressional Budget Office. Its conclusion: fully 88 percent of employees would have been newly classified as Schedule F, thus allowing the president to terminate their employment.
This would have been a revolutionary change, a complete remake of Washington and all politics as usual.
Trump’s E.O. 13957 was a dagger aimed directly at the heart of the beast. It might have worked.
It would have gotten us closer to the restoration of a constitutional system of government in which we have three—not four—branches of government that are wholly controlled by the people’s representatives. It would have gone a long way toward gutting the administrative state of its power and returning the affairs of state to the people’s control.
The action was stopped dead because of the election results.
With Executive Order 12003 (Protecting the Federal Workforce), Biden saved the deep state’s bacon, leaving the efforts to finally drain the swamp to another day and another president.
Still, Executive Order 13957 exists in the archives as a possible path forward to restore checks and balances in the U.S. system of government. A new Congress can also take such steps, at least symbolically.
Until something takes place to restore the people’s control of the administrative state, a sword of Damocles will continue to hang over the entire country, and we will never be safe from another round of lockdowns and mandates.
Should a genuinely reformist president ever take office, this executive order must be issued on the very first day. Trump waited too long, but that mistake need not be repeated.